44 S.C. 478 | S.C. | 1895
The opinion of the court was delivered by
The facts connected with this case are fully stated in the decree of his honor, Judge Witherspoon, which, together with appellant’s exceptions, will be incorporated in the report of the case. The exceptions raise practically but three questions: I. Was Col. Aldrich the agent of the mortgagee, so as to charge the mortgagee with notice given to Col. Aldrich? II. Did Col. Aldrich have notice that the money1 borrowed was not for the use of the mortgagor, a married woman? III. Was the mortgage executed and delivered by Mrs. Bessie C. Felder null and void?
The case of Pelzer v. Durham, 37 S. C., 355, decides that when the money is borrowed for the use of the husband, and this fact is known to the mortgagee, the mortgage is null and void, even when the money is placed to the wife’s credit on the mortgagee’s books, and drawn out on her drafts mostly in favor of the husband, and none of it used by the wife. The many cases on this subject can be harmonized by bearing in mind the distinction in the cases where the money is actually borrowed by the wife, although the mortgagee may have knowledge that the wife intends to dispose of it in such a manner as will be of no benefit to her separate estate, and the cases where-the mortgagee knows that the money is not to go into the possession of the wife and become part of her separate estate. The third question must be answered in the affirmative.
It is the judgment-of this court, that the judgment of the Circuit Court be affirmed.